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Exhibit 1.1
38,000,000
Shares
THE COLONIAL BANCGROUP,
INC.
Common
Stock
UNDERWRITING
AGREEMENT
April 21,
2008
L EHMAN B
ROTHERS I NC .
As Representative of the
several
Underwriters
named in Schedule 1 attached hereto,
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
The Colonial BancGroup, Inc.,
a Delaware corporation (the “ Company ”),
proposes to sell 38,000,000 shares (the “ Firm Stock
”) of the Company’s common stock, par value $2.50 per
share (the “ Common Stock ”). In addition, the
Company proposes to grant to the underwriters (the “
Underwriters ”) named in Schedule 1 attached to
this agreement (this “ Agreement ”) an option to
purchase up to 5,700,000 additional shares of the Common Stock on
the terms set forth in Section 2 (the “ Option
Stock ”). The Firm Stock and the Option Stock, if
purchased, are hereinafter collectively called the “
Stock .” This is to confirm the agreement concerning
the purchase of the Stock from the Company by the
Underwriters.
1. Representations,
Warranties and Agreements of the Company. The Company
represents, warrants and agrees that:
(a) A registration statement
on Form S-3 relating to, among other securities, the Stock
(i) has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the “
Securities Act ”), and the rules and regulations (the
“ Rules and Regulations ”) of the Securities and
Exchange Commission (the “ Commission ”)
thereunder; (ii) has been filed with the Commission under the
Securities Act; and (iii) is effective under the Securities
Act. Copies of such registration statement and any amendment
thereto have been delivered by the Company to you, or made
available to you through the Commission’s EDGAR system, as
the representative (the “ Representative ”) of
the Underwriters. As used in this Agreement:
(i) “ Applicable
Time ” means 6:00 p.m. (New York City time) on
April 21, 2008.
(ii) “ Effective
Date ” means any date as of which any part of such
registration statement relating to the Stock became, or is deemed
to have become, effective under the Securities Act in accordance
with the Rules and Regulations;
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(iii) “ Issuer Free
Writing Prospectus ” means each “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Stock;
(iv) “ Preliminary
Prospectus ” means any preliminary prospectus relating to
the Stock included in such registration statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations,
including any preliminary prospectus supplement thereto relating to
the Stock;
(v) “ Pricing
Disclosure Package ” means, as of the Applicable Time,
the most recent Preliminary Prospectus, together with the
information included in Schedule 3 hereto and each Issuer Free
Writing Prospectus filed or used by the Company on or before the
Applicable Time, other than a road show that is an Issuer Free
Writing Prospectus under Rule 433 of the Rules and
Regulations;
(vi) “
Prospectus ” means the final prospectus relating to
the Stock, including any prospectus supplement thereto relating to
the Stock, as filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations; and
(vii) “ Registration
Statement ” means, collectively, the various parts of
such registration statement, each as amended as of the Effective
Date for such part, including any Preliminary Prospectus or the
Prospectus and all exhibits to such registration statement and all
documents incorporated by reference therein.
Any reference to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act as of
the date of such Preliminary Prospectus or the Prospectus, as the
case may be. Any reference to the “ most recent
Preliminary Prospectus ” shall be deemed to refer to the
latest Preliminary Prospectus included in the Registration
Statement or filed pursuant to Rule 424(b) prior to or on the date
hereof (including, for purposes hereof, any documents incorporated
by reference therein prior to or on the date hereof). Any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment
to the Registration Statement shall be deemed to include any annual
report of the Company on Form 10-K filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after
the Effective Date that is incorporated by reference in the
Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending the effectiveness of the Registration
Statement, and no proceeding or examination for such purpose has
been instituted or threatened by the Commission. The Commission has
not notified the Company of any objection to the use of the form of
the Registration Statement.
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(b) The Company has been
since the time of initial filing of the Registration Statement and
continues to be a “well-known seasoned issuer” (as
defined in Rule 405) eligible to use Form S-3 for the offering
of the Stock, including not having been an “ineligible
issuer” (as defined in Rule 405) at any such time or date.
The Registration Statement is an “automatic shelf
registration statement” (as defined in Rule 405) and was
filed not earlier than the date that is three years prior to the
applicable Delivery Date (as defined in Section 5).
(c) The Registration
Statement conformed on the Effective Date and any amendment to the
Registration Statement filed after the date hereof will conform, in
all material respects to the requirements of the Securities Act and
the Rules and Regulations. The most recent Preliminary Prospectus
conforms on the date hereof, and the Prospectus, and any amendment
or supplement thereto, will conform as of its date and as of the
applicable Delivery Date, in all material respects to the
requirements of the Securities Act and the Rules and Regulations.
The documents incorporated by reference in the most recent
Preliminary Prospectus or the Prospectus, when they became
effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the Rules
and Regulations, and any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the Rules
and Regulations; and no such documents have been filed with the
Commission since the close of business of the Commission on the
Business Day immediately prior to the date hereof.
(d) The Registration
Statement did not, as of the Effective Date, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Registration Statement in reliance upon and in conformity with
written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 8(e).
(e) The Prospectus will not,
as of its date and on the applicable Delivery Date, include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is
made as to information contained in or omitted from the Prospectus
in reliance upon and in conformity with written information
furnished to the Company through the Representative by or on behalf
of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(e).
(f) The documents
incorporated by reference in any Preliminary Prospectus or the
Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
Commission, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
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(g) The Pricing Disclosure
Package did not, as of the Applicable Time, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to
information contained in or omitted from the Pricing Disclosure
Package in reliance upon and in conformity with written information
furnished to the Company through the Representative by or on behalf
of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(e).
(h) Each Issuer Free Writing
Prospectus (including, without limitation, any road show that is a
free writing prospectus under Rule 433), when considered together
with the Pricing Disclosure Package as of the Applicable Time, did
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(i) Each Issuer Free Writing
Prospectus conformed or will conform in all material respects to
the requirements of the Securities Act and the Rules and
Regulations on the date of first use, and the Company has complied
with any filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Rules and Regulations. The Company has
not made any offer relating to the Stock that would constitute an
Issuer Free Writing Prospectus without the prior written consent of
the Representative. The Company has retained in accordance with the
Rules and Regulations all Issuer Free Writing Prospectuses that
were not required to be filed pursuant to the Rules and
Regulations.
(j) Each of the Company and
Colonial Bank, N.A. (the “Bank”) has been duly
incorporated or organized, as the case may be, and is validly
existing and in good standing as a corporation or other business
entity under the laws of its jurisdiction of incorporation or
organization, with all power and authority necessary to conduct the
business in which it is engaged or to own or lease its properties;
and each of the Company and the Bank is duly qualified to do
business and in good standing as a foreign corporation or other
business entity in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified or in
good standing would not, individually or in the aggregate,
reasonably be likely to have a material adverse effect on
(i) the business, financial condition (financial or
otherwise), results of operations, earnings or business of the
Company and its subsidiaries taken as a whole or (ii) the
ability of the Company to consummate the transactions contemplated
hereby (a “Material Adverse Effect”). The Bank is the
only “significant subsidiary” (as such term is defined
in Rule 405) of the Company.
(k) The Company has been duly
registered as a bank holding company and qualified as a financial
holding company under the applicable provisions of the
Bank
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Holding Company Act of 1956,
as amended. The Company and the Bank are in compliance in all
material respects with all applicable laws administered by and
regulations of the Board of Governors of the Federal Reserve System
(the “ Federal Reserve Board ”), the Federal
Deposit Insurance Corporation (the “ FDIC ”),
the Office of the Comptroller of the Currency (the “
OCC ”) and any other federal or state bank regulatory
authority (collectively, the “ Bank Regulatory
Authorities ”) with jurisdiction over the Company or the
Bank, other than where such failures to comply would not,
individually or in the aggregate, reasonably be likely to have a
Material Adverse Effect. Neither the Company nor the Bank is a
party to any written agreement or memorandum of understanding with,
or a party to, any commitment letter or similar undertaking to, or
is subject to any order or directive by, or is a recipient of an
extraordinary supervisory letter from, or has adopted any board
resolutions at the request of, any Bank Regulatory Authority which
restricts materially the conduct of its business, or in any manner
relates to its capital adequacy, its credit policies or its
management, nor have any of them been advised by any Bank
Regulatory Authority that it is contemplating issuing or requesting
(or is considering the appropriateness of issuing or requesting)
any such order, decree, agreement, memorandum of understanding,
extraordinary supervisory letter, commitment letter or similar
submission, or any such board resolutions.
(l) The Company has an
authorized capitalization as set forth in each of the most recent
Preliminary Prospectus and the Prospectus, and all of the issued
shares of capital stock of the Company have been duly authorized
and validly issued, are fully paid and non-assessable, conform to
the description thereof contained in the most recent Preliminary
Prospectus and were issued in compliance with federal and state
securities laws and not in violation of any preemptive right,
resale right, right of first refusal or similar right. All of the
Company’s options, warrants and other rights to purchase or
exchange any securities for shares of the Company’s capital
stock have been duly authorized and validly issued, conform to the
description thereof contained in the most recent Preliminary
Prospectus and were issued in compliance with federal and state
securities laws. Except as disclosed in the most recent Preliminary
Prospectus and the Prospectus, all of the outstanding shares of
capital stock of the Bank have been duly authorized and validly
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of any claim, lien,
encumbrance, security interest, restriction on voting or transfer,
preemptive rights or any other claim of any third party, except as
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(m) The shares of the Stock
to be issued and sold by the Company to the Underwriters hereunder
have been duly authorized and, upon payment and delivery in
accordance with this Agreement, will be validly issued, fully paid
and non-assessable, will conform to the description thereof
contained in the most recent Preliminary Prospectus, will be issued
in compliance with federal and state securities laws and will be
free of statutory and contractual preemptive rights, rights of
first refusal and similar rights.
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(n) The Company has all
requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has
been duly and validly authorized, executed and delivered by the
Company.
(o) The execution, delivery
and performance of this Agreement by the Company, the consummation
of the transactions contemplated hereby and the application of the
proceeds from the sale of the Stock as described under “Use
of Proceeds” in the most recent Preliminary Prospectus will
not (i) conflict with or result in a breach or violation of
any of the terms or provisions of, impose any lien, charge or
encumbrance upon any property or assets of the Company and its
subsidiaries, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, license or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject; (ii) result in any violation of
the provisions of the charter or by-laws (or similar organizational
documents) of the Company or any of its subsidiaries; or
(iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets, except, in the case of clauses
(i) and (iii) as would not, individually or in the
aggregate, be expected to have a Material Adverse
Effect.
(p) No consent, approval,
authorization or order of, or filing or registration with, any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets is required for the execution, delivery and performance of
this Agreement by the Company, the consummation of the transactions
contemplated hereby, or the application of the proceeds from the
sale of the Stock as described under “Use of Proceeds”
in the most recent Preliminary Prospectus, except for the
registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and sale of the Stock by the Underwriters.
(q) There is no contract or
document required to be described in the Registration Statement,
any Preliminary Prospectus or the Prospectus or to be filed as an
exhibit to the Registration Statement or to a document incorporated
by reference into the Registration Statement, any Preliminary
Prospectus or the Prospectus which is not described or filed as
required.
(r) There are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
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(s) The Company has not sold
or issued any securities that would be integrated with the offering
of the Stock contemplated by this Agreement pursuant to the
Securities Act, the Rules and Regulations or the interpretations
thereof by the Commission.
(t) Since the respective
dates as of which information is given in the most recent
Preliminary Prospectus and the Prospectus and otherwise than as set
forth or contemplated therein, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any adverse change, or any development involving a
prospective adverse change, in or affecting the business, financial
condition (financial or otherwise), results of operations,
stockholders’ equity, properties, management, business or
prospects of the Company and its subsidiaries taken as a whole, in
each case except as would not, individually or in the aggregate
have a Material Adverse Effect.
(u) Since the respective
dates as of which information is given in the most recent
Preliminary Prospectus and the Prospectus, the Company has not
(i) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations that were
incurred in the ordinary course of business, (ii) entered into
any material transaction not in the ordinary course of business or
(iii) declared or paid any dividend on its capital
stock.
(v) The financial statements
and the notes thereto included or incorporated by reference in the
most recent Preliminary Prospectus and the Prospectus present
fairly in all material respects the financial condition, results of
operations and cash flows of the entities purported to be shown
thereby at the dates and for the periods indicated and have been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated and comply as to form in all material respects with the
Rules and Regulations, except as otherwise noted
therein.
(w) PricewaterhouseCoopers
LLP, which have certified certain financial statements of the
Company and its subsidiaries, and which have audited the
Company’s internal control over financial reporting and
management’s assessment thereof, is an independent public
accounting firm as required by the Securities Act and the Rules and
Regulations and the rules and regulations of the Public Company
Accounting Oversight Board.
(x) Neither the Company nor
any subsidiary is, and as of the applicable Delivery Date and,
after giving effect to the offer and sale of the Stock and the
application of the proceeds therefrom as described under “Use
of Proceeds” in each of the most recent Preliminary
Prospectus and the Prospectus, none of them will be, required to
register as an “investment company” within the meaning
of the Investment Company Act of 1940, as amended (the “
Investment Company Act ”).
(y) There is no litigation or
legal or governmental proceeding to which the Company or any of its
subsidiaries is a party or to which any property or assets of the
Company or any of its subsidiaries is subject or which is pending
or, to the knowledge of
7
the Company, threatened
against the Company or any of its subsidiaries which if adversely
determined, would, individually or in the aggregate to have a
Material Adverse Effect, except as disclosed in the most recent
Preliminary Prospectus and the Prospectus or (ii) is required
to be disclosed in the most recent Preliminary Prospectus and the
Prospectus and is not disclosed.
(z) No labor disturbance by
the employees of the Company or its subsidiaries exists or, to the
knowledge of the Company, is imminent that would reasonably be
likely to have a Material Adverse Effect.
(aa) (i) Each “employee
benefit plan” (within the meaning of Section 3(3) of the
Employee Retirement Security Act of 1974, as amended (“
ERISA ”)) for which the Company or any member of its
“Controlled Group” (defined as any organization which
is a member of a controlled group of corporations within the
meaning of Section 414 of the Internal Revenue Code of 1986,
as amended (the “ Code ”)) would have any
liability (each a “ Plan ”) has been maintained
in compliance with its terms and with the requirements of all
applicable statutes, rules and regulations including ERISA and the
Code; (ii) with respect to each Plan subject to Title IV of
ERISA (a) no “reportable event” (within the
meaning of Section 4043(c) of ERISA) has occurred or is
reasonably expected to occur, (b) no “accumulated
funding deficiency” (within the meaning of Section 302
of ERISA or Section 412 of the Code), whether or not waived,
has occurred or is reasonably expected to occur, (c) the fair
market value of the assets under each Plan exceeds the present
value of all benefits accrued under such Plan (determined based on
those assumptions used to fund such Plan) and (d) neither the
Company or any member of its Controlled Group has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA
(other than contributions to the Plan or premiums to the PBGC in
the ordinary course and without default) in respect of a Plan
(including a “multiemployer plan”, within the meaning
of Section 4001(c)(3) of ERISA); and (iii) each Plan that
is intended to be qualified under Section 401(a) of the Code
is so qualified and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification,
except in each case as would not, individually or in the aggregate,
to have a Material Adverse Effect.
(bb) The Company and each of
its subsidiaries have filed all federal, state, local and foreign
income and franchise tax returns required to be filed through the
date hereof, subject to permitted extensions, and have paid all
taxes due thereon, and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries, nor does the
Company have any knowledge of any tax deficiencies, in each case
other than would not, individually or in the aggregate, to have a
Material Adverse Effect.
(cc) Neither the Company nor
any of its subsidiaries (i) is in violation or breach of its
certificate of incorporation, by-laws, partnership agreement or
other constitutive documents, (ii) is in default, and no event
has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of
any loan agreement, indenture, mortgage, deed of trust or other
agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject,
(iii) is in violation of any law or any rule, regulation,
order
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or decree of any governmental
agency or body or court having jurisdiction over the Company or any
of its subsidiaries or its respective property or assets or
(iv) has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary
for the conduct of its business or the ownership or holding of its
property, except in the case of clauses (ii), (iii) and (iv),
to the extent any such violation, breach, default or failure would
not, individually or in the aggregate, have a Material Adverse
Effect.
(dd) There is and has been no
failure on the part of the Company or, to the knowledge of the
Company, any of the Company’s directors or officers, in their
capacities as such, to comply with the provisions of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith.
(ee) The Company maintains a
system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) sufficient to
provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets, (iii) access to assets is permitted
only in accordance with U.S. management’s general or specific
authorization and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect thereto. As of
December 31, 2007, the Company’s internal control over
financial reporting was effective, and the Company is not aware of
any material weaknesses in its internal control over financial
reporting.
(ff) The Company maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements
of the Exchange Act.
(gg) Neither the Company nor
any of its subsidiaries, nor, to the knowledge of the Company, any
director, officer, agent, employee or other person associated with
or acting on behalf of the Company or any of its subsidiaries, has
(i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977; or
(iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(hh) The operations of the
Company and its subsidiaries are and have been conducted at all
times in material compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “ Money Laundering Laws
”) and no action, suit or proceeding by or before any court
or governmental agency,
9
authority or body or any
arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened, except, in each case, as
would not reasonably be likely to have a Material Adverse
Effect.
(ii) Neither the Company nor
any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“ OFAC ”); and the Company
will not directly or indirectly use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds to
any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(jj) The Company has not
distributed and, prior to the later to occur of any Delivery Date
and completion of the distribution of the Stock, will not
distribute any offering material in connection with the offering
and sale of the Stock other than any Preliminary Prospectus, the
Prospectus and any Issuer Free Writing Prospectus to which the
Representative has consented in accordance with Section 1(i)
or 5(a)(vii).
(kk) The Company has not
taken and will not take, directly or indirectly, any action
designed to or that has constituted or that could reasonably be
expected to cause or result in the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the shares of the Stock.
Any certificate signed by any
officer of the Company and delivered to the Representative or
counsel for the Underwriters in connection with the offering of the
Stock shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase of the Stock
by the Underwriters. On the basis of the representations and
warranties contained in, and subject to the terms and conditions
of, this Agreement, the Company agrees to sell
38,000,000 shares of the Firm Stock to the several
Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase the number of shares of the Firm Stock
set forth opposite that Underwriter’s name in Schedule
1 hereto. The respective purchase obligations of the
Underwriters with respect to the Firm Stock shall be rounded among
the Underwriters to avoid fractional shares, as the Representative
may determine.
In addition, the Company
grants to the Underwriters an option to purchase up to
5,700,000 additional shares of Option Stock. Such option is
exercisable to the extent that the Underwriters sell more shares of
Common Stock than the number of Firm Stock in the offering and as
set forth in Section 4 hereof. Each Underwriter agrees,
severally and not jointly, to purchase the number of shares of
Option Stock (subject to such adjustments to eliminate fractional
shares as the Representatives may determine) that bears the same
proportion to the total number of shares of Option Stock to be sold
on such Delivery Date as the number of shares of Firm Stock set
forth in Schedule 1 hereto opposite the name of such
Underwriter bears to the total number of shares of Firm
Stock.
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The price of both the Firm
Stock and any Option Stock purchased by the Underwriters shall be
$7.64 per share.
The Company shall not be
obligated to deliver any of the Firm Stock or Option Stock to be
delivered on the applicable Delivery Date, except upon payment for
all such Stock to be purchased on such Delivery Date as provided
herein.
3. Offering of Stock by
the Underwriters . Upon authorization by the Representative
of the release of the Firm Stock, the several Underwriters propose
to offer the Firm Stock for sale upon the terms and conditions to
be set forth in the Prospectus.
4. Delivery of and Payment
for the Stock . Delivery of and payment for the Firm Stock
shall be made at 10:00 A.M., New York City time, on the third
full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the
Representative and the Company. This date and time are sometimes
referred to as the “ Initial Delivery Date .”
Delivery of the Firm Stock shall be made to the Representative for
the account of each Underwriter against payment by the several
Underwriters through the Representative of the aggregate purchase
price of the Firm Stock being sold by the Company to or upon the
order of the Company by wire transfer in immediately available
funds to the accounts specified by the Company. Time shall be of
the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each
Underwriter hereunder. The Company shall deliver the Firm Stock
through the facilities of DTC unless the Representative shall
otherwise instruct.
The option granted in
Section 2 will expire 30 days after the date of this Agreement
and may be exercised in whole or from time to time in part by
written notice being given to the Company by the Representative;
provided that if such date falls on a day that is not a
business day, the option granted in Section 2 will expire on
the next succeeding business day. Such notice shall set forth the
aggregate number of shares of Option Stock as to which the option
is being exercised, the names in which the shares of Option Stock
are to be registered, the denominations in which the shares of
Option Stock are to be issued and the date and time, as determined
by the Representative, when the shares of Option Stock are to be
delivered; provided, however , that this date and time shall
not be earlier than the Initial Delivery Date nor earlier than the
third business day after the date on which the option shall have
been exercised nor later than the fifth business day after the
dat
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